Jackson v. Marvell School District Motion for Permission to Appeal Upon the Original Papers, to Consolidate Appeals, and for Summary Reversal

    No. 03-633

In THE
Supreme (Eonrt of tfre ilnttgft sta tes

Donald P. Roper,
Superintendent, Potosi Correctional Center,

Petitioner,
v.

Christopher Simmons,
Respondent.

On Writ Of Certiorari To 
The Supreme Court of Missouri

BRIEF OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC., THE 
AMERICAN CIVIL LIBERTIES UNION, THE 
NATIONAL ASSOCIATION OF CRIMINAL 
DEFENSE LAWYERS, THE NATIONAL BAR 
ASSOCIATION, THE NATIONAL URBAN 
LEAGUE INSTITUTE FOR OPPORTUNITY 
AND EQUALITY, THE NATIONAL BLACK 
POLICE ASSOCIATION, THE NATIONAL 
CONFERENCE OF BLACK LAWYERS, AND 
THE NATIONAL BLACK LAW STUDENTS 
ASSOCIATION, AS AMICI CURIAE IN 

SUPPORT OF RESPONDENT

Theodore M. Shaw 
Director-Counsel
Norman J. Chachkin 
Miriam Gohara 

♦Christina A. Swarns

NAACP Legal Defense 
and Educational 
Fund, Inc.

99 Hudson Street, 16th FI. 
New York, NY 10013 
(212)965-2200

* Counsel o f Record
[Additional Counsel listed inside front cover]



[Listing of Counsel continued from cover]

Steven R. Shapiro 
American Civil Liberties 

Union Foundation 
125 Broad Street 
New York, NY 10025 
(212) 549-2500

Dlann Y. Rust-Tierney 
American Civil Liberties 

Union Foundation 
915 15th Street, N.W. 
Washington, DC 20005 
(202)675-2321

Charles J. Hamilton, Jr. 
Paul, Hastings, Janofsky 

& Walker LLP 
75 East 55th Street 
New York, NY 10022 
(212)318-6000

Gilda Sherrod-Ali 
National Conference of 

Black Lawyers 
116 West 111™Street 
New York, NY 10027 
(866) 266-5091

Barry C. Scheck 
President Elect 
National Association of 

Criminal Defense 
Lawyers

Cochran, Neufeld & 
Scheck

99 Hudson Street, 8th Floor 
New York, NY 10013 
(212) 965-9380

Clyde E. Bailey, Sr . 
President 

National Bar 
Association 
1225 11th Street, N.W. 
Washington, DC 20001 
(202) 842-3900

Counsel for Amici Curiae



1

TABLE OF CONTENTS

Table o f A u th o ritie s .................................................................... ii

Interest o f Amici Curiae ..............................................................1

Sum m ary o f Argum ent ............................................................. 4

ARGUMENT —

Introduction ............   5

Race in the Criminal and Juvenile Justice
Systems .................................................................... 6

Race Influences Capital Sentencing 
Decisions in Cases Involving Juveniles............... 9

The Only Way to Insure that Race Does 
Not Determine Whether a Juvenile 
Defendant Will Receive a Death Sentence 
Is to Hold that the Death Penalty May No 
Longer Be Imposed Upon Juveniles..................15

Conclusion.............................................................. 19

Page



TABLE OF AUTHORITIES

Page

Cases:

Alexander v. Louisiana,
405 U.S. 625 (1 9 7 2 ) ........................................................... In

Atkins v. Virginia,
536 U.S. 304, 317 (2 0 0 2 ) ............................  5, 16, 17, 18

Batson v. Kentucky,
476 U.S. 79 (1 9 8 6 ) ..............................................................In

City o f Los Angeles v. Lyons,
461 U.S. 95 (1 9 8 3 ) ...........................................................  7n

Furman v. Georgia,
408 U.S. 238 (1 9 7 2 ) ..................................................In, 15

Gregg v. Georgia,
428 U.S. 153 (1 9 7 6 ) ......................................................... 15

Ham v. South Carolina,
409 U.S. 524 (1 9 7 3 ) ........................................................... In

Lockett v. Ohio,
438 U.S. 586 (1 9 7 8 ) .................................................  16, 17

McCleskey v. Kemp,
481 U.S. 279 (1 9 8 7 ) ........................................................... In



iii

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

Miller-El v. Cockrell,
537 U.S. 322 (2 0 0 3 ) ........................................................ In

State ex rel. Simmons v. Roper,
112 S.W .3d 397 (Mo. 2 0 0 3 ) ........................................  18n

Swain v. Alabama, 380 U.S. 202 ( 1 9 6 5 ) .......................... In

Weems v. United States, 217 U.S. 349 (1 9 1 0 ) .......... 15-16

Other Authorities:

A nthony A m sterdam  et al.,
Amicus Brief, Court o f Appeals o f the 
State o f New York, People o f the State 
o f New York Against Darrel K. Harris,
27 N.Y.U. Rev. L. & Soc.Change 399 (2002) . .  11-12

D avid C. Baldus et al.,
How the Death Penalty Works: Empirical 
Studies o f the Modem Capital Sentencing 
System, 83 Cornell L. Rev. 1638 (1998) ................. 17n

R ick Bragg,
DNA Clears Louisiana Man on Death Row,
Lawyer Says, N.Y. Times, Apr. 22, 2003, at A 14 . 13n



IV

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

Bureau o f Justice Statistics,
U.S. D ep’t of Justice, Contacts Between 
Police and the Public: Findings from the 
1999 National Survey 2 (2001), available 
at http://w w w .ojp.usdoj.gov /bjs/pub/pdf/
c p p 9 9 /p d f ..................................................................... 6n-7n

Jeffrey Fagan & G arth Davies,
Street Stops and Broken Windows:
Terry, Race and Disorder in New York
City, 28 Fordham  Urb. L. J. 457 (2 0 0 0 ) ...................... 7n

Gwen Filosa,
Ex-Death Row Inmate Home on Bond,
Tim es-Picayune, June 23, 2004 .................................  14n

Sam uel R. Gross et al.,
Exonerations in the United States 1989 
Through 2003 (Apr. 19, 2004), available at 
http://w w w .law .um ich.edu/N ew sA ndInfo/
ex o n era tio n s-in -u s.p d f...........................................11, 17n

Bob Herbert,
Trapped in the System, N .Y . Times,
July 14, 2003, at A 1 7 .................................................... 14n

M arc M auer,
Race to Incarcerate ( 1 9 9 9 ) .............................................  7n

http://www.ojp.usdoj.gov
http://www.law.umich.edu/NewsAndInfo/


V

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

N ew  York City Police Department,
City wide Stop and Frisk Data: 1998, 1999, 
and 2000, available at http://ww w.nyc.gov/ 
htm l/nypd/pdf/pap/stopandfrisk_0501.pdf.................6n

Note,
Developments in the Law: Race and the
Criminal Process, 101 Harv. L. Rev. 1472 (1988) . 7n

K enneth B. Nunn,
The Child as Other: Race and Differential 
Treatment in the Juvenile Justice System,
51 DePaul L. Rev. 679 ( 2 0 0 2 ) ...................................... 8n

Office o f Juvenile Justice and Delinquency 
Prevention,

Office o f Justice Programs, U.S. D ep’t 
o f Justice, Juveniles in Corrections 12 
(June 2004), available at http://ww w.ncjrs.org/ 
pdffiles 1 /ojjdp/2028 85 .p d f .................................7, 8n, 9n

Office o f Juvenile Justice and Delinquency 
Prevention,

Office of Justice Programs, U.S. D ep’t 
o f Justice, Minorities in the Juvenile 
Justice System 2 (Dec. 1999), available at http:// 
w w w .ncjrs.org/pdffilesl/ojjdp/179007.pdf . . . .  8n, 9n

http://www.nyc.gov/
http://www.ncjrs.org/
http://www.ncjrs.org/pdffilesl/ojjdp/179007.pdf


VI

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

M arc Riedel,
Discrimination in the Imposition o f the 
Death Penalty: A Comparison o f the 
Characteristics o f Offenders Sentenced 
Pre-Furman and Post-Furman, 49 Temp.
L.Q. 261 ( 1 9 7 6 ) ..............................................................  12n

David A. Sklansky,
Traffic Stops, Minority Motorists and the
Future o f the Fourth Amendment, 1997
Sup. Ct. Rev. 271 ( 1 9 9 7 ) ................................................ 6n

V ictor L. Streib,
The Juvenile Death Penalty Today: Death 
Sentences and Executions fo r  Juvenile Crimes,
January 1, 1973 - June 30, 2004, available at 
http ://w w w . law. onu . edu/faculty/streib/ 
docum ents/JuvD eathJune302004N ew Tables.pdf . lOn

Alan J. Tom pkins etal.,
Subtle Discrimination in Juvenile Justice 
Decisionmaking: Social Scientific Perspectives
and Explanations, 29 Creighton L. Rev.
1619(1996) ..........................................................................7

United States General A ccounting Office,
Death Penalty Sentencing: Research Indicates 
Pattern o f Racial Disparities 2 (Feb. 1990) . . 12n,13n



TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

B ela A ugust W alker,
Note, The Color o f Crime: The Case Against 
Race-Based Suspect Descriptions, 103 Colum.
L. Rev. 662 (2003) 6



1

Interest of Amici Curiae1

The N A ACP Legal Defense and Educational Fund, Inc. 
(LDF), is a non-profit corporation form ed to assist African 
Am ericans in securing their rights by the prosecution of 
lawsuits. Its purposes include rendering legal aid without 
cost to A frican Am ericans suffering injustice by reason o f 
race w ho are unable, on account o f poverty, to employ legal 
counsel on their own. For many years, its attorneys have 
represented parties and it has participated as amicus curiae 
in this Court, in the low er federal courts, and in state courts.2

The Am erican Civil Liberties U nion (ACLU) is a 
nationwide, nonprofit, nonpartisan organization with more 
than 400,000 m em bers dedicated to the principles of liberty 
and equality em bodied in the Constitution. It has two 
regional affiliates in M issouri: the A C LU  of Kansas & 
W estern M issouri, and the ACLU o f  Eastern M issouri. The 
A C LU  has long supported abolition o f the death penalty as

'Letters of consent by the parties to the filing of this brief have 
been lodged with the Clerk of this Court. No counsel for any party 
authored this brief in whole or in part, and no person or entity 
other than amici made any monetary contribution to the 
preparation or submission of this brief.

2The LDF has a long-standing concern with the influence of 
racial discrimination on the criminal justice system in general, 
and on the death penalty in particular. We therefore represented 
the defendants in, inter alia, Furman v. Georgia, 408 U.S. 238
(1972) , McCleskey v. Kemp, 481 U.S. 279 (1987), Swain v. 
Alabama, 380 U.S. 202 (1965), Alexander v. Louisiana, 405 
U.S. 625 (1972) and Ham v. South Carolina, 409 U.S. 524
(1973) and appeared as amicus curiae in Batson v. Kentucky, 
476 U.S. 79 (1986) and Miller-El v. Cockrell, 537 U.S. 322 
(2003).



2

a form  o f cruel and unusual punishm ent. It has also long 
believed that the death penalty is adm inistered in this country 
in a manner that is both arbitrary and discrim inatory. These 
concerns prom pted the creation o f the A C L U ’s Capital 
Punishm ent Project, and this case once again brings those 
concerns into sharp focus. The question o f w hether juveniles 
can be executed by the state is thus one o f substantial 
im portance to the A C LU  and its members.

The National Association o f Crim inal D efense Lawyers 
(NACDL) is a non-profit corporation with m ore than 10,000 
members nationwide and 28,000 affiliate m em bers in 50 
states, including private crim inal defense lawyers, public 
defenders and law professors. The A m erican Bar 
Association recognizes N A CD L as an affiliate organization 
and awards it full representation in its H ouse of Delegates. 
NACDL was founded in 1958 to prom ote study and research 
in the field o f crim inal law , to dissem inate and advance 
knowledge o f the law in the area o f crim inal practice, and to 
encourage the integrity, independence, and expertise o f 
defense lawyers in crim inal cases. N A CD L seeks to defend 
individual liberties guaranteed by the Bill o f  Rights and has 
a keen interest in ensuring that legal proceedings are handled 
in a proper and fair manner. A m ong N A C D L ’s objectives is 
promotion o f the proper adm inistration o f justice.

The National Bar Association, the N ation’s oldest and 
largest bar association o f color, was founded in 1925. One 
of its m issions is to prom ote social justice and equality. Its 
m em bership is comprised o f a netw ork o f 18,000 law yers, 
judges and legal scholars w ho have developed a substantive 
interest and expertise in the juvenile  justice area.

The National Urban League Institute for O pportunity and 
Equality is dedicated to the pursuit o f equal opportunity for



3

African Am ericans and concentrates on crim inal justice, 
em ployment and workforce development, education, housing 
and economic and comm unity developm ent.

The National Black Police A ssociation (NBPA), which 
represents approxim ately 35,000 individual m em bers and 
m ore than 140 chapters, is a nationw ise organization of 
African Am erican Police Associations dedicated to the 
prom otion o f justice, fairness and effectiveness o f law 
enforcement.

The National Conference o f B lack Lawyers (NCBL), a 
legal organizations that employs its m em bers’ skills in the 
m ovem ent against racism  and for the liberation o f African 
peoples, seeks to protect hum an rights, achieve self- 
determ ination o f A frican comm unities, and w ork in coalition 
to assist to assist in ending the oppression o f all peoples.

The National Black Law Students Association (NBLS A), 
which represents over 6,000 B lack students at law schools 
across the country, endeavors to sensitize the law and legal 
profession to the ever-increasing needs o f the Black 
community.

All amici have a substantive interest in juvenile justice 
and oppose the execution o f juvenile  offenders because the 
sentencing and execution o f young offenders is plagued by 
the same racial bias that each group strives to eliminate. 
Amici believe their perspectives on how race inappropriately 
influences capital prosecutions against juvenile offenders 
differs from  the im m ediate concerns o f the parties and will 
be valuable to the Court in appraising the issues presented.



4

Summary of Argument

This Court has long sought to ensure that the death 
penalty is adm inistered with channeled discretion, that 
decisionm akers consider and give effect to relevant factors 
counseling against death, and that arbitrary factors, such as 
race, do not dictate the outcom e o f life or death decisions. 
By steadfastly guarding these principles, this C ourt has 
endeavored to achieve a fair and color-blind death penalty.

D espite this C ourt’s efforts to excise race from  the capital 
punishm ent calculation, it rem ains a pivotal factor in the 
administration of the juvenile  death penalty. Decisionm akers 
—  e.g., prosecutors and juries —  are legally precluded from  
relying explicitly on race when exercising their discretion 
and deciding whether, and to what extent, a defendant’s 
youth weighs against a decision to seek or to im pose a death 
sentence. But in practice, race rem ains a critical 
consideration. Specifically, empirical evidence suggests that 
for offenders of color, decisionm akers discount or altogether 
elim inate the m itigating value o f youth. Thus, currently 
death-sentenced juveniles as well as juveniles who have been 
executed are predom inantly youth o f color.

Em pirical evidence likewise dem onstrates that young 
offenders o f color are m ore likely than juvenile  defendants 
generally to be wrongfully convicted, w rongly sentenced to 
death, and wrongfully subjected to an otherw ise flawed 
adjudication. M uch m ore than a m ajority o f both exonerated 
juveniles and of exonerated juvenile offenders who had been 
prosecuted on the basis o f false confessions are adolescents 
o f color.

B ecause race continues to constrain the discretionary 
consideration of youth as a m itigating factor and increases 
the risk  that juvenile offenders o f color will receive a  death



5

sentence, this Court should categorically exclude juveniles 
from  death penalty eligibility.

ARGU M EN T

Introduction

The question presented by this case is w hether the death 
penalty is constitutionally disproportionate for juvenile 
offenders. For the reasons outlined in Respondent’s brief and 
the briefs o f numerous other supporting amici, the answer to 
that question is certainly “yes.” This brief is being submitted 
to highlight the fact that race improperly continues to 
dim inish (and often to eliminate) the m itigating value of 
youth at the various points o f discretion in capital 
prosecutions against juvenile offenders and thereby 
“underm ine[s] the strength of the procedural protections that 
our capital jurisprudence steadfastly guards.” Atkins v. 
Virginia, 536 U.S. 304, 317 (2002).

The process for determining how, if  at all, to factor youth 
into the calculus when deciding whether to charge, 
prosecute, try and sentence juvenile offenders to death is 
unavoidably subjective and standardless. Even bifurcated 
sentencing hearings fail to provide m eaningful direction 
because the sentencer is not provided with any guidelines for 
determ ining whether and to what extent a defendant’s youth 
is to be considered a m itigating factor. This absence of 
structure denies capitally charged juvenile  offenders the 
necessary protection against the influence o f im proper 
considerations, such as race, in these critical death penalty 
decisions. In light o f this dilemm a, this Court should hold 
that the death penalty for juvenile offenders is



6

unconstitutional and disproportionate, and that it violates the 
E ighth Am endm ent.

Race in the Criminal and Juvenile Justice Systems

Em pirical evidence has repeatedly dem onstrated that 
w ithin the crim inal justice  system,

[d isp roportionate  burdens on people o f color em erge 
at each point that discretion is used: whether it be the 
decision to detain a suspect, to m ake a traffic stop, to 
search a driver, to shoot at a civilian, to handcuff a 
suspect, to m ake an arrest, to prosecute a case, to try 
a m inor defendant as an adult, to increase charges, to 
p lea bargain, to convict, to determ ine sentence 
length, or ultim ately w hether to apply the death 
penalty or not. Each step in the crim inal process 
increases the discrim inatory effect, as well as the 
perceived im age o f m inorities as disproportionately 
crim inal.

Bela A ugust W alker, Note, The Color o f Crime: The Case 
Against Race-Based Suspect Descriptions, 103 Colum. L. 
Rev. 662, 680-81 (2003) (footnotes om itted).3

’Among the works cited by the author, see, inter alia, New 
York City Police Department Citywide Stop and Frisk Data: 
1998, 1999, and 2000, at 1, available at http://www.nyc. 
gov/html/nypd/pdf/pap/stopandfrisk_0501.pdf (citing NYPD 
records indicating that approximately one half of stop and frisk 
suspects during 1998-2000 period were black); David A. 
Sklansky, Traffic Stops, Minority Motorists and the Future o f the 
Fourth Amendment, 1997 Sup. Ct. Rev. 271, 313 (1997) (citing 
data from Florida, New Jersey, and Maryland to show that 
“minority motorists are pulled over far more frequently than 
whites”); Bureau of Justice Statistics, U.S. Dep’t of Justice, 
Contacts Between Police and the Public: Findings from the 1999

http://www.nyc


7

The same phenom enon occurs w ithin the juvenile justice 
system. In juvenile justice, “discretionary decisionmaking, 
w hich necessarily utilizes substantive factors [such as the 
juven ile ’s personal and social environment, and his/her 
situation at hom e, in the com m unity and in school], serves to 
facilitate disproportionately adverse outcomes for minorities, 
particularly A frican A m ericans.” Alan J. Tom pkins et al., 
Subtle Discrimination in Juvenile Justice Decisionmaking: 
Social Scientific Perspectives and Explanations, 29 
Creighton L. Rev. 1619, 1631 (1996). Thus, the U.S. 
D epartm ent o f Justice, Office o f Juvenile Justice and 
Delinquency Prevention has found that “ [bjlack juveniles are 
overrepresented at all stages o f the juvenile justice system

National Survey 2 (2001), available at http://www.ojp.usdoj.gov 
/bjs/pub/pdf/cpp99/pdf (“During the traffic stop, police were more 
likely to carry out some type of search . . .  on a black (11.0%) or 
Hispanic (11.3%) than a white (5.4%).”); id. at 16 (“Blacks 
(6.4%) and Hispanics (5.0%) were more likely than whites (2.5%) 
to be handcuffed.”); Note, Developments in the Law: Race and 
the Criminal Process, 101 Harv. L. Rev. 1472, 1495 (1988) (“[A] 
black citizen today is far more likely than is a nonblack citizen to 
be shot or seriously injured by a police officer.”); City of Los 
Angeles v. Lyons, 461 U.S. 95, 116 n.3 (1983) (Marshall, J., 
dissenting) (“[I]n a city where Negro males constitute 9% of the 
population, they have accounted for 75% of the deaths resulting 
from the use of chokeholds.”); Jeffrey Fagan & Garth Davies, 
Street Stops and Broken Windows: Terry, Race and Disorder in 
New York City, 28 Fordham Urb. L. J. 457,491 (2000) (“[S]top- 
to-arrest ratio of blacks (7.3 stops per arrest) is 58.7% higher than 
the ratio for non-Hispanic whites (4.6).”); Marc Mauer, Race to 
Incarcerate 125 (1999) (“[Statistical analysis by the United 
States Sentencing Commission concluded that, for comparable 
behavior, whites were being offered plea bargains leading to 
outcomes falling below the level requiring a mandatory minimum 
sentence more often than blacks or Hispanics.”).

http://www.ojp.usdoj.gov


8

com pared with their proportion to the population .”4 
S p e c i f i c a l l y ,  A f r i c a n - A m e r i c a n  c h i l d r e n  a r e  
disproportionately represented in the num ber o f juvenile  
arrests,5 are overrepresented among children w ho are 
detained,6 are more likely to have form al delinquency 
petitions filed against them  than their white counterparts,7 are 
m ore likely to have their cases transferred into adult court for 
prosecution,8 are “m ore likely to be placed in public secure

4Office of Juvenile Justice and Delinquency Prevention, 
Office of Justice Programs, U.S. Dep’t of Justice, Juveniles in 
Corrections 12 (June 2004), available at http://www.ncjrs.org 
/pdffiles 1 /ojj dp/202885 .pdf [hereinafter Juveniles in Corrections\.

5Kenneth B. Nunn, The Child as Other: Race and Differential 
Treatment in the Juvenile Justice System, 51 DePaul L. Rev. 679, 
683-84 (2002) (noting that, in 1997, while black youth accounted 
for only 15% of the under-eighteen population in the United 
States, they represented 26% of the juvenile arrests and 31 % of 
the delinquency cases referred for prosecution).

6Office of Juvenile Justice and Delinquency Prevention, 
Office of Justice Programs, U.S. Dep’t of Justice, Minorities in 
the Juvenile Justice System 2 (Dec. 1999), available at 
http://www.ncjrs.org/pdffilesl/ojjdp/179007.pdf [hereinafter 
Minorities] (“In 1996-97, while 26% of juveniles arrested were 
black, [blacks] made up 45% of cases involving detention. 
Thirty-two percent of adjudicated cases involved black youth, yet 
40% of juveniles in residential placement are black. Even 
recognizing the overrepresentation of black juveniles involved in 
violent crimes reported by victims (39%), they still accounted for 
a disproportionate share of juvenile arrests for violent crimes 
(44%) and confinement (45%).”).

7Nunn, supra, at 685.

Id. at 685-86.

http://www.ncjrs.org
http://www.ncjrs.org/pdffilesl/ojjdp/179007.pdf


9

facilities, while white youth are more likely to be housed in 
private facilities or diverted from  the juvenile justice 
system ,”9 are “more likely . . .  to be confined behind locked 
doors,” 10 and “are . . . held in custody longer than white 
youth.” 11

Race Influences Capital Sentencing 
Decisions in Cases Involving Juveniles

The above evidence of racial discrim ination w ithin the 
juvenile  and criminal justice systems has significant 
im plications for this C ourt’s —  and our N ation’s —  
aspiration to achieve unbiased capital sentencing, including 
in juvenile  cases. Decisions whether to charge a juvenile  
w ith a capital offense, whether to offer a juvenile a non­
death p lea bargain, and whether to im pose a death sentence 
on a juvenile  offender, take place w ithin the context o f  a 
system  in which race is deeply ingrained. Because there are 
no standards governing whether and to what extent youth 
should factor into these decisions, there is a significant 
possibility, if  not probability, that an offender’s race will 
influence, if  not dictate, that determination. This is so even 
though at every stage at which a decisionm aker m ust

9Minorities, supra, at 3. See also Juveniles in Corrections, 
supra, at 10 (finding that, in 1999, “[mjinorities accounted for 
66% of juveniles committed to public facilities nationwide -  a 
proportion nearly twice their proportion of the juvenile 
population”).

10 Id. at 17. See also Minorities, supra, at 9 (“Secure 
detention was nearly twice as likely in 1996 for cases involving 
black youth as for cases involving whites, even after controlling 
for offense.”).

"Nunn, supra, at 687.



10

exercise his/her discretion for or against a death sentence 
(e.g., the point at which a prosecutor files a capital charge 
and/or when the trial factfinder m akes its sentencing 
determ ination), the decisionm aker is prohibited from  
explicitly  considering race. The em pirical evidence 
dem onstrates that race continues to m atter, presum ably 
because decisionm aker(s) in the capital system  often fail to 
exclude conscious or unconscious racial considerations from  
the subjective, standardless, and unreview ed process o f 
deciding w hether an individual defendant’s youth is 
sufficiently m itigating to w arrant leniency.

A vailable data regarding the adm inistration o f the death 
penalty for juvenile  offenders supports this conclusion. As 
o f June 30, 2004, there w ere 72 juveniles under sentence o f 
death in the U nited States.12 Two thirds are teenagers o f 
color.13 (In addition, two thirds o f the victim s o f the death- 
sentenced adolescents are w hite.14) Over half o f the 
juveniles who were executed since 1973 were black or 
L atino .15 A nd significantly m ore adolescents o f color have

12Victor L. Streib, The Juvenile Death Penalty Today: Death 
Sentences and Executions for Juvenile Crimes, January 1,1973 - 
June 30, 2004, at 12 tbl.5, at http://www.law.onu.edu 
/faculty/streib/documents/JuvDeathJune302004NewTables.pdf.

13See id. Twenty-nine of these offenders are African- 
American, 15 of them are Latino, 1 is Native American and 2 are 
Asian. Id.

,4See id. One Native American, 7 Asians, 8 Blacks, 11 
Latinos and 65 whites were the victims of these death sentenced 
juvenile offenders. Id.

X5See id. at 4 tbl.l. Eleven of the twenty-two executed 
juveniles were African-American and one was Latino. Id.

http://www.law.onu.edu


11

been found to have been wrongly convicted o f  rape and 
m urder than white adolescents: A study o f exonerations 
occurring betw een 1989 and 2003 revealed that ninety 
percent o f  exonerated juveniles were A frican-A m erican or 
L atino .16

[Although] w hite defendants account for 34%  of all 
m urder exonerations and 27%  o f all rape 
exonerations —  [they represent] only 14% ofjuvenile 
m urder exonerations, and not a single juvenile rape 
exoneration. A  m ajority o f the teenagers arrested for 
these two crimes are white —  62%  o f all juvenile 
rape arrests in 2002, and 46 % o f juvenile  m urder the 
relevant time period .17

This pattern of race lim iting (or eviscerating) the 
m itigating value of youth at the point o f prosecutor, judge 
and/or ju ry  discretion, is consistent with the em pirical 
evidence docum enting the fact that race continues to 
influence capital prosecutions generally. D ata reveals that

[n]one o f the statutes upheld by Gregg [v. Georgia, 
428 U.S. 153 (1976)] and its progeny as formally 
sufficient to cure the Furman arbitrariness/ 
discrim ination problem  have come close to 
elim inating it. To the contrary, capital sentencing 
decisions under the so-called “guided discretion” type 
o f statute sustained in Gregg . . . have consistently 
been found to turn prim arily on the race o f the victim

l6See Samuel R. Gross et al., Exonerations in the United 
States 1989 Through 2003, at 24 tbl.6 (Apr. 19, 2004), available 
at http ://www.law.umich.edu/NewsAndInfo/exonerations-in-us. 
pdf.

17Id. at 34 (emphasis in original).

http://www.law.umich.edu/NewsAndInfo/exonerations-in-us


12

and secondarily on the race o f the defendant, usually 
in combination.

Anthony A m sterdam  et al., Amicus Brief, Court o f Appeals 
o f the State o f New York, People o f the State o f New York 
Against Darrel K. Harris, 27 N .Y.U. Rev. L. & Soc. Change 
399,442-43 (2002) (footnotes om itted).18 Thus, for example, 
in 1990, the United States General A ccounting Office issued 
a R eport to the Senate and House Com m ittees on the 
Judiciary evaluating 28 separate studies o f the death penalty 
from  various regions o f the country.19 That report concluded 
that the studies “show[] a pattern o f evidence indicating 
racial disparities in the charging, sentencing, and im position

18“Looking at the 493 people who had been on death rows in 
28 States just before Furman was decided and then at the 407 
people sent to death rows in the same 28 States during their first 
three years of operating under post-Furman statutes, this study 
found that the percentage of nonwhite death row inmates had
actually risen, from 53% to 62%-----Although more than half of
the nation’s murder victims in the post-Furman period were 
nonwhite, 87% of the victims of the persons condemned to die in 
States selected to compare mandatory-death-sentence 
jurisdictions with guided-discretion jurisdictions were white.” 
Amsterdam, supra, at 442 n.143 (citing Marc Riedel, 
Discrimination in the Imposition of the Death Penalty: A 
Comparison of the Characteristics of Offenders Sentenced Pre- 
Furman and Post-Furman, 49 Temp. L.Q. 261 (1976)); see also 
id. at 443 n.147 (citing articles establishing the fact that race 
influences the exercise of prosecutorial discretion to seek a death 
sentence or to refuse a noncapital disposition).

19United States General Accounting Office, Death Penalty 
Sentencing: Research Indicates Pattern of Racial Disparities 2 
(Feb. 1990).



13

of the death penalty after the Furman decision.”20

Review  o f one juvenile  capital case provides a concrete 
illustration o f how  discretionary decisions that may be 
influenced by race can have a detrim ental im pact on the 
capital punishm ent process in cases involving young 
defendants.

Ryan M atthews is an African-A m erican young man. In 
1999, Ryan M atthews was charged with, convicted of, and 
sentenced to death for a Louisiana m urder he allegedly 
com m itted when he was seventeen years old. Ryan 
M atthews, like the m ajority o f death-sentenced juveniles, 
was convicted o f m urdering a white victim . A  jury  
com posed o f 11 whites and one black found him  guilty 
notw ithstanding questionable identification testim ony,21 the 
absence o f physical evidence connecting Ryan M atthew s to

20Id. at 5. The GAO Report concluded that “[i]n 82 percent 
of the studies, race of victim was found to influence the likelihood 
of being charged with capital murder or receiving the death 
penalty, i.e., those who murdered whites were found to be more 
likely to be sentenced to death than those who murdered blacks.” 
Furthermore, the GAO study found that “[t]he evidence for the 
race of victim influence was stronger for the earlier stages of the 
judicial process (e.g., prosecutorial discretion to charge a 
defendant with a capital offense, decision to proceed to trial rather 
than plea bargain) than in later stages.” Id.

21Rick Bragg, DNA Clears Louisiana Man on Death Row, 
Lawyer Says, N.Y. Times, Apr. 22, 2003, at A14 (“One witness 
said he had pulled his car in front of the robber’s car and 
fishtailed for a while so it could not get past him. The witness 
said that as he was dodging bullets from the gunman, he saw the 
gunman’s face clearly in the rearview mirror. Another witness 
said she had seen Mr. Matthews briefly pull up the mask in the 
store while she was in the parking lot.”).



14

the m urder, and the inconsistencies betw een the witness 
statem ents and the physical evidence.22 The same ju ry  
sentenced Ryan M atthews to death.

In 2003, after another prisoner bragged o f having 
com m itted the m urder for which Ryan M atthew s was 
convicted, DNA testing was conducted. Those tests revealed 
that D N A found in saliva and a skin cell w hich were left on 
the ski m ask worn by the killer did not m atch the D N A  of 
Ryan M atthews. Instead, it m atched the D N A o f  the 
bragging prisoner —  a convicted drug dealer and m urderer. 
Ryan M atthew s’ conviction was then vacated and a n e w  trial 
was ordered. He was released from  prison on bond and is 
now  aw aiting re-trial.23

Given the dearth of credible evidence regarding guilt, it 
w ould have been reasonable to expect that Ryan M atthew s’ 
youth would, at the very least, have dim inished the 
likelihood that a death sentence would be sought or imposed.

22“Witnesses said the masked gunman had dived through the 
open car window, but the window on the Grand Prix the police 
believe was the getaway car [the car in which Mr. Matthews was 
apprehended] had been stuck closed for as long as anyone could 
remember.” Id. Additionally,

[e]yewitnesses had said the gunman in the convenience 
store was not very tall, perhaps 5-5 or 5-6, and of medium 
build. Sheree Falgout, who was standing at the register 
when the proprietor was gunned down, recalled telling the 
police that the assailant ‘was not a large person.’ Other 
witnesses concurred. Ryan Matthews is 6 feet tall.

Bob Herbert, Trapped in the System, N.Y. Times, July 14, 2003, 
at A17.

23See Gwen Filosa, Ex-Death Row Inmate Home on Bond, 
Times-Picayune, June 23, 2004.



15

It did not. And, although“[w]e cannot say from  facts 
disclosed in [the] record[] that [this] defendan t] [was] 
sentenced to death because [he was] black "Furman v. 
Georgia, 408 U.S. 238 ,253  (1972) (Douglas, concurring), it 
is equally im possible to discount the possibility that race 
played a constitutionally inappropriate role in the ultimate 
decision to seek and im pose the death penalty. In light o f all 
o f the o ther factors counseling against the execution of 
juvenile  offenders, such individuals should not, in addition, 
be com pelled to face the risk of racial bias in the capital 
punishm ent process.

The Only Way to Insure that Race Does Not 
Determine Whether a Juvenile Defendant Will 

Receive a Death Sentence Is to Hold that the 
Death Penalty May No Longer Be Imposed 

Upon Juveniles

In 1972, this Court announced, in Furman v. Georgia, 
408 U.S. 238 (1972), that any law which allowed an arbitrary 
and illegitim ate factor such as race to play a role in the 
adm inistration o f the death penalty is unconstitutional. See 
id. at 249-57 (Douglas, J., concurring), 274-77, 293-96 & 
n.48 (Brennan, J., concurring), 309-10 & n.13 (Stewart, J., 
concurring), 312-14 (W hite, J., concurring), 363-66 & n . 152 
(M arshall, J., concurring). W hile the death penalty laws 
have been changed to lim it sentencer discretion, see Gregg 
v. Georgia, 428 U.S. 153 (1976), race continues to play an 
invidious role in the administration o f capital punishm ent for 
juvenile  offenders. The death penalty for such offenders is, 
therefore, unconstitutional.

The Eighth A m endm ent’s prohibition on excessive 
sentences requires the “punishm ent for crim e [to] be 
graduated and proportioned to [the] offense.” Weems v.



16

United States, 217 U.S. 349, 367 (1910). In analyzing 
whether capital punishm ent is constitutionally proportional 
for specific categories o f offenders, this Court has considered 
whether the offenders at issue have a characteristic w hich 
underm ines the crim inal justice  system ’s capacity for 
effective adjudication. Thus, for example, w hen this C ourt 
decided that the Eighth A m endm ent prohibits the execution 
o f mentally retarded offenders, it held that

[t]he risk “that the death penalty will be im posed in 
spite of factors w hich m ay call for a less severe 
penalty,”is enhanced, no t only by the possibility o f 
false confessions, but also by the lesser ability o f 
m entally retarded defendants to m ake a persuasive 
showing o f m itigation in  the face o f prosecutorial 
evidence o f one or m ore aggravating factors. 
M entally retarded defendants m ay be less able to give 
m eaningful assistance to their counsel and are 
typically poor w itnesses, and their dem eanor m ay 
create an unw arranted im pression o f lack o f rem orse 
for their crimes. As Penry dem onstrated, m oreover, 
reliance on m ental retardation as a m itigating factor 
can be a tw o-edged sw ord that m ay enhance the 
likelihood that the aggravating factor o f future 
dangerousness will be found by the jury.

Atkins, 536 U.S. at 320-21 (quoting Lockett v. Ohio, 438 
U.S. 586, 605 (1978)) (footnote om itted).

Youth o f color in capital cases face m eaningfully 
identical circum stances. For m any juvenile  offenders, race 
devalues evidence that would otherw ise support a case for 
life, encourages the im position o f the death penalty in spite 
o f the existence o f factor(s) w hich should call for leniency 
and ultim ately functions as an unlaw ful im pedim ent to the



17

proper consideration o f m itigating evidence. “W hen the 
choice is betw een life and death, that risk is unacceptable 
and incom patible with the com m ands o f the Eighth and 
Fourteenth A m endm ents.” Lockett, 438 U.S. at 605.

One specific way in which race increases the likelihood 
that the death penalty will be im posed on a juvenile offender 
notwithstanding the existence o f significant factors calling 
for leniency is that youth of color, like offenders w ith mental 
retardation, are m ore likely to offer false confessions. As 
detailed in other briefs before this Court, this is true for 
juveniles in general. Em pirical evidence reveals, however, 
that this likelihood o f falsely confessing is even greater when 
the youth at issue is a person o f color. The G ross study of 
rape and m urder exonerations betw een 1989 and 2003, 
revealed that “[e] ighty-five percent o f  the juvenile exonerees 
who falsely confessed were African A m erican.”24 Thus, race 
combines w ith age to render capitally charged juveniles 
particularly vulnerable to false confessions and wrongful 
convictions. The com bination thereby enhances “[t]he risk 
‘that the death penalty will be im posed in spite o f factors 
which m ay call for a less severe penalty .’” Atkins, 536 
U .S .at 320-21 (quoting Lockett, 438 U.S. at 605).

Additionally, as with mental retardation, the combination 
o f  race and youth functions as a “double-edged sword,” 
increasing the likelihood that a sentencer w ill perceive the 
defendant as a future danger. W hen the offender is a young 
person of color, the ju ry  may be conditioned to think o f the 
offender as “the other” and dangerous (especially if  the 
victim  is w hite).25 The youthfulness o f the offender causes

24Gross, supra, at 25 (emphasis added).

25See, e.g., David C. Baldus et al., How the Death Penalty 
Works: Empirical Studies of the Modem Capital Sentencing



18

the ju ry  to think that this defendant is m ore likely to get out 
o f prison and is, therefore, m ore likely to pose a future 
danger to society.26 Com bined these factors undoubtedly 
cause the ju ry  to lean in favor o f the death penalty. Race 
together w ith youth is, therefore, a  com bination w hich is 
often perceived by factfinders as aggravating when, in fact, 
it can and should be perceived as m itigating.

Because youth combines w ith race in a w ay that 
“underm ine[s] the strength o f the procedural protections that 
our capital jurisprudence steadfastly guards,” Atkins, 536 
U.S. at 317, and because, as a result, youth o f color “in the 
aggregate face a special risk o f w rongful execution,” id. at 
321, it is appropriate for this Court to issue “a categorical 
rule m aking such offenders ineligible for the death penalty.” 
Id. at 320.

System, 83 Cornell L. Rev. 1638 (1998) (finding that in 
Philadelphia, Pennsylvania, African-American capital defendants 
faced substantially increased odds of receiving the death penalty 
as compared to similarly situated white defendants and that being 
African American increased the odds of receiving a death 
sentence to the same extent as did the presence of the additional 
aggravating circumstances of torture or grave risk of death).

26Indeed, in Christopher Simmons’ case, the prosecution 
argued that the jury should consider Mr. Simmons’ age as an 
aggravator instead of a mitigator in that it rendered him more 
likely to be a future danger to society. State ex rel. Simmons v. 
Roper, 112 S.W.3d 397, 413 (Mo. 2003)



19

Conclusion

The judgm ent below should be affirmed.
Respectfully submitted,

Steven R. Shapiro 
American Civil Liberties 

Union Foundation 
125 Broad Street 
New York, NY 10025 
(212) 549-2500

Diann Y. Rust-Tierney 
American Civil Liberties 

Union Foundation 
915 15th Street, N.W. 
W ashington, DC 20005 
(202) 675-2321

Barry C. Scheck 
President Elect 
National Association 

of Criminal Defense 
Lawyers

Cochran, Neufeld & 
Scheck

99 Hudson Street, 8th Floor 
New York, NY 10013 
(212) 965-9380

Theodore M. Shaw 
Director-Counsel

Norman J. Chachkin 
Miriam Gohara 

*Christina A. Swarns 
NAACP Legal Defense 
and Educational Fund, 
Inc.

99 Hudson Street,
16th Floor

New York, NY 10013 
(212) 965-2200

Clyde E. Bailey, Sr . 
President 
National Bar 

Association 
1225 11th Street, N.W. 
Washington, DC 20001 
(202) 842-3900

Charles J. Hamilton, Jr . 
Paul, Hastings, 

Janofsky 
& Walker LLP 

75 East 55th Street 
New York, NY 10022 
(212)318-6000



20

Gilda Sherrod-Ali 
National Conference of 

Black Lawyers 
116 West 11 1th Street 
New York, NY 10027 
(866) 266-5091

* Counsel of Record 

* Counsel for  Amici Curiae